Divorce Law

There are 3 matrimonial reliefs recognized by Roman Dutch law. They are;

1. Divorce/Dissolution of Marriage (Divorce)
2. Judicial Separation
3. Making Marriage Null and Void

This article will mainly discuss the Divorce Law in Sri Lanka.

Divorce is the dissolution of various rights arising from marriage and spousal relations through a
court decision.

Divorce Law in Sri Lanka is mainly governed by common law except for those Muslim and
Kandyan Law apply.

Basically there are 2 Acts that explain the legal provisions related to divorce under the common
law.

1. General Marriage Ordinance
2. Code of Civil Procedure

Section 19(2) of the General Marriages Ordinance No. 19 of 1907 states the basic requirements
for obtaining a divorce.

According to that section, there are 03 grounds which divorce can be obtained in Sri Lanka.

1. Adultery after marriage
2. Malicious Desertion
3. Incurable sexual impotency at the time of marriage

Above three grounds are mainly discussed following.

1.Adultery
Adultery means when a person is having a sexual intercourse outside of legal marriage with
another man or woman who is not the legal spouse. The other party who involved in adultery can
be married or unmarried.

According to Section 602 of the Code of Civil Procedure, adultery must be proved to the maximum
level of satisfaction of the court.

There is a difference of opinion in court decisions regarding the burden of proof of adultery.
Eg:- In the case of Jayasinghe v Jayasinghe, the court decided that adultery must be proved
beyond reasonable doubt as in a criminal case. This was also followed in the case of Dharmasena
V Navaratne.

But in Alamalammal v Nadarajah the Court of Appeal held that proof of balance of probabilities
was sufficient.

Currently, the court is of the opinion about adultery that it is not necessary to prove it beyond
reasonable doubt and it is necessary to prove it with clear evidences. When filing a case based on
adultery should name the co-defendant. This is indicated in section 598 of the Civil Procedure
Code.

As per the Section 598 of the Code of Civil Procedure

• When the defendant is a prostitute.
• When new details of adultor is not found..
• When the adultor is dead.

2.Malicious desertion
Malicious desertion is negligence of marital obligations permanently.

On the ground of malicious desertion, the plaintiff has to prove 02 facts.

1.Mental aspect (Malice)

2.Physical Aspect (Desertion)

Malicious desertion can be discussed mainly in 02 parts.

1.malicious desertion

2.constructive malicious desertion

In direct malicious desertion, the malicious party leaves the marital home, but in constructive
malicious desertion, the innocent party leaves the home as a result of some act of the other party.
Malicious desertion is sufficient to prove by balance of probability that there is a presumption of
intention to leave the matrimonial home. Then the person who left home must break that
presumption.

Malicious abandonment is the main form of divorce in Sri Lanka.

The defenses to malicious abandonment are unconsciousness, cruelty, incompatibility of parties.

3.Incurable Impotency

Sexual impotence at the time of marriage.

This is a ground for obtaining a divorce under Section 19(2) of the General Marriage Ordinance
and also a ground for obtaining a decree of nullity of marriage under our law.

Also, according to Article 19(2), divorce cannot be obtained on the ground of incurable sexual
impotency having after marriage.

Divorce can be obtained under the General Marriage Ordinance of Sri Lanka under the three main
elements described above.

Matrimonial fault must be proved in a divorce case. Here, according to the law of evidence, the
party who claims that matrimonial fault, should be proved by herself or himself.

There are two types of Alimony that can be granted in a divorce case.

1. Pending alimony ; According to Section 614 of the Code of Civil Procedure, the parties
   may be ordered to pay a divorce alimony while tendering the judgment by the court.
2. Permanent Alimony; The court has the power to order a party to pay permanent alimony
   with the decree (Section 615 of the Code of Civil Procedure).

Source: Women In Need